- (1.) V. M. Sahai, J. The question that arises for consideration in these writ peti tions is whether services of the petitioners who were appointed as untrained teachers, Junior High School in 1972 and have worked continuously since then, could be deemed to have come to an end after the Institution was upgraded and came on grants-in-aid list because they were not trained teachers on the date of their appointment even though they ac quired the necessary qualification and be came trained teachers during service with permission of the authorities either after up-gradation of the Institution or it's com ing on grants-in-aid list in 1978.
(2.) SHRI Krishan Vidyapeeth Uchchatar Madhyamik Vidyalaya, Chirraiya Kot, Mau (in brief Institution), was granted recognition as Junior High School in 1971. On 10-3-1971 the State Govern ment issued an Order Clause 5 of which permitted appointment of untrained teachers in Junior High Schools subject to the condition that the appointee obtained training certificate within five years other wise he would be entitled to the initial salary only. The petitioners were ap pointed as permanent assistant teachers in the Institution after coming into force of this Order in 1971-72. All of them were untrained. Sri Pali Ram Yadav was inter mediate only. Others were graduate or post-graduate. The Institution was granted recognition in 1974, under Sec tion 7 of the U. P Intermediate Act, 1921 (in brief Act), to impart education to High School. But the maintenance grant was sanctioned in 1978. As a consequence of it the Institution came under the purview of U. P High Schools and Intermediate Col leges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (in brief Salaries Act ). Till 1978 there was no dis pute. But after the provisions of Salaries Act became applicable the salaries of petitioners was stopped. Sri Pali Ram Yadav filed Writ Petition No. 7068 of 1978, before this Court, in which on 8- 2-1979 a stay Order was passed directing payment of salary to the petitioner. In compliance of the Order the salary of the petitioner was paid and he continued. Bus it appeals as a result on filing of the writ petition the management referred the dispute about payment of his salary to the District In specter of Schools (in brief DIGS) who the his order dated 1-12-1980 held that the petitioner was entitled to trained LT grade. But this Order was recalled on 17-3-1981 and the petitioner was placed in CT grade. And payment of salary was slopped again. The petitioner consequently filed another Writ Petition No. 8743 of 1981 wherein this Court on 6-5-1983, again passed stay Order in favour of the petitioner and salary of the petitioner was paid from June, 1981 to February, 1987. On 4-3-1987 the stay orders passed in both the Writ Petition No. 7068 of 1978 and Writ Petition No. 8743 of 1981 were va cated and the petitions were decided on 12-3-1993, directing the Director of Education (in brief DE) to pass orders in accordance with law with regard to the grievance of the petitioner either himself or though his nominee within a period of three months. The petitioner along with the judgment dated 12-3-1993 made a rep resentation to the DE on 12-4-1993. He nominated Additional Director of Educa tion (Secondary), (in brief ADE) to decide the claim of the petitioner. The ADE called for a report from the DIOS, Mau who submitted his report on 14-12-1993 recommending that orders should be passed with regard to payment of salary of the petitioner. The report has been filed as Annexure 13 to the writ petition. In this report he held the management guilty for not taking steps for absorption of the petitioner under Chapter II, Regulation 4 of the Regulations framed under the Act. But the ADE rejected the claim of the petitioner on 18-2-1994. He held that on the date of appointment in 1972 the petitioner was only intermediate and un trained and his appointment was not ap proved, therefore, he was not eligible to be appointed even in CT grade. And when the Institution was upgraded in 1974 then eleven posts were approved in LT grade and 12 in CT grade in 1975 but manage ment did not absorb the petitioner against it because he was working as unqualified and unapproved teacher. The ADE held that a teacher could be regularised under Regulation 4 of Chapter II as permanent teacher or tempi was qualified and non-absorption c justified. The salary 8166 of 1994 was provisions of pliable. They to had been appoint unit teachers on and 1-7- 71 respect appointment were M. A. when Acharya from S Vishvavidalya. Stained degree of E 1975, 1976, When their salary Writ Petition No 1978. These petit by directing the of Pan Ram Yawl was also rejected were not eligible absorbed. In the court respondents the posed on the being untrained not regular and l without obtain Education neither entitled', Institution was u of salary. It disclaim petitioners was teachers who qualification and appointments titled for absorb Regulation 4 of t up-gradation of School. The rest that it was not services of the pc entitled for any and the writ petitioners was any teacher only if he eligible, therefore, the Pali Ram Yadav was petitioner in Writ No. also stopped after the aries Act became-were untrained. They permanently as -7-72, 1 10-72, 1-10-72 lively. On the date of toner Nos. 1, 3 and 4 :5 petitioner No. 2 was mourning and Sanskrit like in service they ob-bachelor of Education in and 1989 respectively, was stopped they filed 7068, 7069 and 7070 of )n too were disposed of A1 DE to decide as in case Their representation is they being untrained and they could not be-affidavit filed by the aim of petitioners is that the petitioners heir appointment was cy had been appointed g approval of Basic r, therefore, they were absorption when the graded nor for payment led that the grievance of justified as only those ere having requisite eligible and whose re approved were en-ion under Chapter II, Regulations after the he Institution as High indents further claim :essay to terminate the as they were not any under the Salary Attestation filed by the old of any merit.
(3.) I have heated Shri Ashok Khare learned Counsel for the petitioner in Civil Misc. Writ Pettier No. 8168 and 8166 of 1994 and Shri Namwar Singh for Damodar Yadav in Civil Misc. Writ Petition No. 8166 of 1994 and standing Counsel for the respondents. The earned Counsel argued that the petitioners having acquired train ing certificate and being graduate were entitled for LT grade and in any case their salaries could not be withheld as their ap pointment was made after 10-3-1971 in accordance with the Government Order permitting Junior High Schools to ap point untrained teachers permanently. The learned Counsel urged that the only restriction was that the untrained teacher was required to obtain training certificate within five years else he was to be paid his initial salary. The learned Counsel pointed out that two of the petitioners in the Writ No. 8166 of 1994 namely, Dhani Ram and Damodar Yadav having obtained their training certificate within five years much before the Institution was brought in the grants-in-aid list they were entitled for absorption in the High School and the remaining were entitled to continue and were entitled to be absorved as and when they obtained their training certificates. The learned Counsel further argued that there was no requirement of obtaining ap proval of the basis education officer at the time of their appointment. In any case Shri Khare argued that the petitioners having worked continuously for more than ten years and their appointment being in ac cordance with law the respondents were not justified in withholding their salary. The learned Standing Counsel supported the impugned orders. I would take up the case of Pati Ram Yadav as he was intermediate only on the date of his appointment and if he is found entitled for absorption and payment of salary then there would not be any dif ficulty of petitioners in Writ No. 8166 of 1994 as on the date of their appointment they were either graduate or post graduate. Pan Ram during service with the permission of the authorities obtained de gree of M. A. (History), M. A. (Sociology) and training certificate from the Govern ment Basic Training College, Lucknow on 16-7-1979. But the question is whether the ADE was justified in recording the finding that Pali Ram was neither eligible nor qualified to be appointed as assistant teacher in 1972. He has given there reasons in support of his finding one that the petitioner was no educationally qualified second he was untrained and the third that his appointment was not approved by the Basic Education Officer. Each reason given by him is either con trary "to the provisions which were ap plicable to Junior High Schools at the time of petitioners' appointment or it is against facts. The ADE has not referred to any provisions in the Regulation or Schedule appended to it, which may indicate that the minimum qualification for a assistant teacher in Junior High School was more than intermediate. Even when U. P. Recog nised Basic Schools (Juniors High Schools) (Recruitment and Conditions of Service of Teacher) Rules were enacted In 1978 (in brief Rules 1978) the minimum educational qualification prescribed for appointment as assistant teacher was in termediate only. The petitioner, Pali Ram was thus educationally qualified to be ap pointed as assistant teacher in Junior High School. It may now be examined whether an untrained teacher could 1 e appointed permanently and whether such appoint ment was illegal. Before 10-3-1971 the ser vices of assistant teachers in Junior High Schools were governed by provisions in the Education Code. Chapter V dealt with recognised Junior and Senior Basic Schools. It had two sections A and B. The former dealt with school for boys and lat ter for girls. No qualification was prescribed for an assistant teacher in boys' schools. But paragraph 196 in B Section provided that no untrained teacher shall be appointed permanently in a recognized school. This did not apply to boy's schools. There was thus no bar on permanent appointment for an untrained teacher in boys schools. Even if it is assumed that the Regulation 196 applied to boys schools the doubt if any stood removed when the State Government issued the Order in 1971. The Order purported to revise the salary of assistant teachers in Junior High Schools but it made obligatory for any untrained teacher appointed after the notification was issued to acquire training certificate within five years of this appoint ment otherwise he would be paid the ini tial salary only. There was thus no restric tion on the management of a Junior School in appointing an untrained teacher permanently. Pali Ram having been ap pointed permanently, as is clear from his appointment order, after the Government Order of 10-3-1971 had been issued his appointment was in accordance with law it was neither irregular nor illegal. Training became essential qualification under Rules, 1978. The appointment of petitioner, however, being prior to it and in accordance with law in force on the date of his appointment it did not suffer from any defect. In Rikh Pal Singh v. District Basic Education Board, Allahabad, 1990 UPLBEC 351, it has been held by this Court that the provisions in 1978 Rules were not retrospective therefore, appoint ment of an untrained teacher prior to these rules could not be terminated. These rules did not in any manner effect the ap pointments made after Government Order of 1971. An untrained teacher, therefore, could be Appointed permanent ly between 1971 and 1978. The appoint ment letters of all the petitioners clearly shows that their appointment was per manent.;